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self may be punished.
No accessories in mayhem.
5 Hcn. 4. c. 5. Cutting tongues, or putting out eyes, made felocy.
A bodily hurt whereby a man is rendered less able, in fighting, to defend himself or to annoy his adversary, is properly a maim at common law. (g) Therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which, in all animals, abates their courage, are held to be maims: but the cutting off his ear, or nose, or the like, are not held to be maims at common law; because they do not weaken a man, but only disfigure him. (h) In order to found an indictment of mayhem the act must be done maliciously, though it matters not how sudden the occasion.(i)
It is laid down that, by the common law, if a person maim himself in order to have a more specious pretence for asking charity, or to prevent his being impressed as a sailor, or enlisted as a soldier, he may be indicted; and, on conviction, fined and imprisoned.(k) For as the life and members of every subject are under the safeguard and protection of the King; so they are said to be in manu regis, to the end that they may serve the King and country when occasion shall require.(1)
It should seem that there can be no accessories before the fact in mayhem, at common law; though there appears to have been some difference of opinion, or rather misapprehension, upon the subject. (m) For, supposing the offence to be in the nature of an aggravated trespass only, the rule will apply, that in crimes under the degree of felony there can be no accessories, but that all persons concerned therein, if guilty at all, are principals. (2) It does not appear to have been any where supposed, that there can be accessories after the fact in mayhem.(0)
Attempts to murder, maiming, and the doing or attempting great bodily harm, have been made highly penal by the enactments of several statutes, which may be mentioned in the order of time in which they were passed.
The statute 5 Hen. 4. c. 5. reciting that offenders did daily beat, wound, imprison, and maim divers of the King's liege people, and after purposely cut their tongues, or put out their "that in such case the offenders that so cut tongues, eyes, enacts,
(g) Staund. P. C. 3. Co. Lit. 126. 3 Inst. 62, 118. 1 Hawk. P. C. c. 55. s. 1. 4 Blac. Com. 205. 1 East. P. C. c. 7. s. 1. p. 393.
(h) 1 Hawk. P. C. c. 55. s. 2. 4 Blac. Com. 205, 206. 1 East. P. C. c. 7. s. 1. p. 393. 4 Bac. Ab. Maihem (A.)
(i) 1 East. P. C. c. 7. s. 1. p. 393.
"dicted, fined, and ransomed."
(m) Lord Hale states, that there are no accessories before in mayhem, but that they are in the same degree as principals, 1 Hale 613. Hawkins, on the contrary, says, that it seems there may be accessories before the fact in mayhem. 2 Hawk. P. C. c. 29. s. 5. In I East. P. C. c. 7. s. 7. p. 401. there is a learned argument, to shew that the latter opinion proceeded on a mistake.
(n) Ante, 31.
(0) 1 Hawk. P. C. c. 55. s. 13. and 2 Hawk. P. C. c. 29. s. 5. 1 East. P. C. c. 7. s. 7. p. 401.
"or put out the eyes of any the King's liege people, and that
Persons cutting off ears
are to forfeit treble da
Next in order of time is the statute 37 Hen. 8. c. 6. the fourth 37 Hen. 8. c. 6. section of which, amongst other provisions, enacts, that "if any person or persons maliciously, willingly, or unlawfully cut or "cause to be cut off the ear or ears of any of the King's sub"jects, otherwise than by authority of the law, chance medley, "sudden affray or adventure," every such offender shall not only forfeit to the party grieved treble damages, to be recovered by action of trespass, but shall also forfeit to the King for every such offence 101. in the name of a fine.
pay a fine of
fit of clergy.
A more severe and effectual statute, 22 and 23 Car. 2. c. 1. 22 & 23 Car. 2. was afterwards passed, upon the subject of malicious maiming. c. 1. (Coventry It is usually called the Coventry act; having been occasioned by cious maiming a violent attack upon Sir John Coventry in the street, and slit- made felony ting his nose, in revenge, (as was supposed) for some obnoxious without benewords uttered by him in parliament.(r) The seventh section enacts, "that if any person or persons, on purpose and of malice "forethought, and by lying in wait, shall unlawfully cut out or "disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject "of his majesty, with intention, in so doing, to maim or dis"figure, in any the manners before mentioned, such his majesty's
subject; that then and in every such case, the person or per"sons so offending, their counsellors, aiders, and abettors, (know"ing of and privy to the offence as aforesaid) shall be and are "hereby declared to be felons, and shall suffer death, as in cases "of felony, without benefit of clergy." But by the subsequent section, no attainder of such felony is to extend to corrupt the blood, or forfeit the dower of the wife, or the lands, goods, or chattels of the offender.
of the statute 22 & 23 Car. 2.
Several points have been holden upon the construction of this Construction statute, which may be considered, as they relate, 1. to the " purpose and malice forethought;" 2. to the lying in wait; 3. to the kind of maiming or disfiguring; and, 4. to the intention to maim or disfigure. It is not thought necessary to state them much in detail, as offences against this act appear to be included
As to the purpose and malice forethought.
As to the lying in wait.
in the more general provisions of a recent statute, 43 G. 3. c. 56. which will be presently mentioned.
With respect to the "purpose and malice forethought," it may be observed, that it must be substantiated by proving a deliberate and premeditated design to do a personal injury to another, of the sort described in the statute. (s) It does not, however, seem necessary, that the malicious intention should be directed against any particular individual: for if it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the particular mischief done to any one will be connected with the general malignant intent, so as for the statute to attach upon the offenders. (t) And it seems clear that, if a man striking another, with such an evil intent as would make him guilty of mayhem if the person struck at should be maimed, happen to miss that person and strike a third person, and maim him, he will be equally guilty.(u)
In order to satisfy the words "lying in wait," it seems that there must be some deliberate watching for an opportunity to effect the evil purpose. But it is not necessary that the party should place himself in any particular concealment, and then rush out of his lurking place to do the mischief. If, after having formed the intention, he takes a convenient opportunity of doing the premeditated deed, and does it with deliberation, it is a lying in wait; though he do not take any particular length of time, or use any extraordinary degree of preparation. (w) Thus, where the prisoner with many other persons, supposed to be a gang of thieves, beset the prosecutor as he was passing along the street with his master's cart loaded with sugar, and after he had received several severe wounds from some of them, and there had been repeated exclamations by several of them of "Damn you, where 66 are your knives?" the prisoner made a stroke at him with a large knife, and gave him a dreadful wound on the face, but it appeared that the cart was not robbed, and the prosecutor said, that he could suppose no other cause for this cruel treatment, than that it was intended by way of revenge against him, for having detected and beat off some thieves who had made an attempt to rob the cart, near the same place, on the preceding evening, the case was left to the jury upon the question of lying in wait. And the learned Judge desired them to consider whether the fact were deliberately and intentionally done by lying in wait for that purpose, on the account suggested, or from any other malicious and deliberate motive; or whether it were a sudden violent impulse of rage, not in the previous contemplation of the parties; in which latter case, it was not within the statute: but he laid stress on the expression uttered by some of the gang-" Where are your "knives?" as explanatory of a previous design to do such a mischief. (2) In another case, where a gentleman, having de
(s) 1 East. P. C. c. 7. s. 3. p. 394. citing 1 MS. Sum. 122. And see as to malice aforethought, ante, 422, et seq. (t) 1 East. P. C. c. 7. s. 4. p. 396. Rex v. Carrol and King, post. 589.
(u) 2 Hawk. P. C. c. 23. s. 16. and see ante, 453, et sequ.
(w) By Eyre, B. in Rex v. Mills, 1 Leach 259.
(x) Rex v. Mills, East. P. C. c. 7. s. 5. 1 Leach 259.
tected a boy in picking his pocket, had seized him, and was carrying him along the street, and the prisoner, who was lurking thereabouts, came up to them, and after walking for some little time, sometimes before and sometimes after them, at last struck the gentleman a severe blow across the face with a knife, saying, "Damn you, Sir, let the boy go;" the two Judges who inclined most to a strict construction of the words "lying in wait," &c. yet were of opinion that the circumstance of the prisoner passing before the gentleman, and waiting till he came up, and then giving him the wound, was a lying in wait within the statute. (y)
But if the mischief be done in a sudden attack, without any premeditated design against the person, there will not be a lying in wait within the statute. Thus, where the prisoner was stealing turnips in a field, and, being found by the servant of the owner of the field in the very act of taking them, struck the servant immediately, with a sharp instrument, and slit his nose; it was holden that this was not an offence within the statute: all the Judges holding that there was not sufficient evidence of a lying in wait; and some of them considering that the having the instrument, and using it, was with intent to escape, and not to murder or maim. (3) And the lying in wait must be with the view, and for the purpose, described in the statute. Thus, where the commander of a press-gang maimed a man, whom he casually met, and who resisted being pressed, and against whom it appeared that he had an old grudge; though the jury found that the wounding was of malice aforethought, yet the Judges, upon a reference to them, were of opinion that there was no lying in wait, so as to bring the offence within the intent and purview of the statute. (a) The maiming or disfiguring must also be of such a nature as the statute describes. Thus, where a husband, who had lived a long while separate from his wife, visited her again, and, having persuaded her to let him sleep with her, took an opportunity, during the night, and while she was asleep, to make a wound across her throat, about three inches in length, with a razor, which he had procured, and concealed for the purpose; it was ruled that the offence was not complete, there not being such a maim as the act requires. (b) But it has been decided that a large transverse wound across the nose, so wide and deep as to render the bone visible, is a slitting of the nose, within the statute, although the nostril be not thereby perforated. (c) And in another case, where there was a deep cut across the nose, which separated the flesh, and went quite through into the nostril, an objection
As to the
kind of maim¬ ing or disfi
As to the intention to
maim or disfigure.
Of aiders and abettors.
Of the indictment.
9 Anne, c. 16.
9 G. 1. c. 22. Maliciously shooting at
that the nose could not be said to be slit because the edge of it was not cut through, was overruled. (d)
The words in the statute are "with intention in so doing to "maim or disfigure:" but these words have been considered as merely auxiliary to the preceding words, " on purpose and of "malice aforethought," confining the crime to an intended violence. (e) So that it has been ruled, that if a man attack another, of malice aforethought, in order to murder him with a bill, or any other such like instrument, which cannot but endanger the maiming him, and in such attack happen not to kill, but only to maim him, he may be indicted on this statute: and that it shall, in such case, be left to the jury, upon the evidence, whether there was a design to murder by maiming, and, consequently, a malicious intent to maim as well as to kill; in which case the offence is within the statute, though the primary intention was murder.(ƒ)
This statute of 22 & 23 Car. 2. expressly extends to counsellors, aiders, and abettors, knowing of and privy to the offence: it includes, therefore, all accessories before. But in a case where it appeared that one of the prisoners, though present at the fact, and guilty of a trespass and assault, was nevertheless altogether ignorant of any intention to maim or disfigure, the court directed that he should be acquitted in the first instance, before the guilt or innocence of the perpetrator was ascertained.(g)
An indictment upon this statute must pursue the words of it, and allege the offence to have been committed "on purpose, of "malice aforethought, and by lying in wait;" and state that the act was done with the intent mentioned in the statute. But as the words of the statute are in the disjunctive, an averment either that the act was done with intent to maim, or with intent to disfigure, according to the subject matter, seems to be sufficient. (h)
The next statute in the order of time is the 9 Anne, c. 16, which was passed for the more especial protection of privy counsellors in the execution of their office; and was made on the occasion of Mr. Secretary Harley being stabbed by Anthony de Guiscard, who was at the time under examination before the privy council. It enacts, "that if any person or persons shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or "wound any person being one of the most honourable privy coun"cil, when in the execution of his office of a privy counsellor, "in council, or in any committee of council, that then the person "or persons so offending, being thereof convicted in due form of "law," shall be felons, and suffer death without benefit of clergy. The statute 9 G. 1. c. 22. relates to the offence of wilfully and
(d) Rex v. Coke and Woodburn, 6 St. Tr. 212, et sequ.
(e) 1 East. P. C. c. 7. s. 6. p. 399, 400.
(f) Rex v. Coke and Woodburn, ante, note (d), 1 Hawk. P. C. c. 55. s. 8. 4 Bac, Ab. Maihem (B). 4 Blac. Com. 206. note (k). 1 East. P. C. c. 7. s. 6. p. 400. in which last book it is said, that on the conference of
the Judges on another case (Carrol's, ante, note (c)) Willes, J. and Eyre, B. expressed some dissatisfaction with this case; and thought at least that the construction ought not to be carried further.
(g) Rex v. Mackey and Arrigoni, 1 East. P. C. c. 7. s. 6. p. 399. and s. 7. p. 401.
(h) 1 East. P. C. c. 7. s. 8. p. 402. ˇ